[2016] KEELC 358 (KLR)
The court found that the applicant had not fully settled the outstanding costs, as the auctioneers were entitled to deduct their fees from the proceeds of execution before remitting the balance to the defendant. The applicant's payment and the subsequent auctioneer's recovery did not extinguish the entire debt, as a...
Source-derived case information.
- Citation
- [2016] KEELC 358 (KLR)
- Parties
- Plaintiff: Ibrahim Mweny Kotit; Defendant: Alemusia Kotit
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 18 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Application to Stay or Set Aside Warrant of Attachment
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Execution of Decrees, Costs Taxation, Warrants of Attachment, Auctioneer Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Mweny Kotit
Plaintiff
Alemusia Kotit
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Stay or Set Aside Warrant of Attachment
Legal Issues
- 1 Whether the warrants of attachment issued on 9/5/2016 should be stayed or set aside.
- 2 Whether the applicant has suffered double jeopardy or overpayment in execution of costs.
- 3 Whether the auctioneers were entitled to recover their costs from the proceeds of execution.
Ratio Decidendi
The court found that the applicant had not fully settled the outstanding costs, as the auctioneers were entitled to deduct their fees from the proceeds of execution before remitting the balance to the defendant. The applicant's payment and the subsequent auctioneer's recovery did not extinguish the entire debt, as a balance remained after the auctioneer's costs were deducted. The court held that the defendant was entitled to instruct auctioneers to recover the remaining balance, and that the warrants of attachment were properly issued. The application was found to lack merit as there was no evidence of double jeopardy or overpayment, and the legal provisions cited by the applicant were...
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's notice of motion dated 18/5/2016 is dismissed with costs to the respondent.
- The order staying warrants given on 19/5/2016 is discharged.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 18 OF 2011
IBRAHIM MWENY KOTIT…….............................. PLAINTIFF
VERSUS
ALEMUSIA KOTIT………….………………………DEFENDANT
R U L I N G
1. This is a ruling in respect of a notice of motion dated 18/5/2016 brought by the defendant/applicant. The application is expressed to be brought under the provisions of Order 34 Rules 1, 2and4 of the Civil Procedure Rules and Sections 3, 3Aand80of theCivil Procedure Act.
2. The applicant seeks stay and or setting aside of the warrant of attachment issued herein on 9/5/2016. The applicant had filed an application for injunction which application was dismissed with costs to the defendant. A bill of costs was assessed in respect of the dismissed application at Kshs.29,495/=.
3. The main suit proceeded to full hearing and the same was dismissed with costs to the defendant in a judgement delivered on 14/1/2014. The defendant proceeded to tax his bill which was assessed at Kshs.59,421/=. The total pending bills in favour of the defendant were Kshs.88,916/=.
4. The defendant instructed the auctioneers to recover the pending bills. The auctioneers moved and attached the applicant’s properties. The applicant’s counsel moved to court and filed a notice of motion dated 1/4/2015 seeking to review the Deputy Registrars orders on 18/3/2015 and setting aside the warrants of sale. This application was heard inter-partes and was dismissed in a ruling delivered by the Deputy Registrar on 28/7/2015.
5. The plaintiff issued a cheque of Kshs.28,916/= and remained with a balance of Kshs.60,000/=. When the plaintiff delayed in paying the balance of Kshs.60,000/=, the defendant instructed auctioneers who went and recovered Kshs.72,000/=. The defendant was paid Kshs.30,000/= and the auctioneer retained the rest of the money being their costs.
6. The defendant instructed auctioneers to recover the balance of the outstanding bill prompting the filing of the present application.
7. Order 34 of the Civil Procedure Rules deals with interpleader proceedings. It has nothing to do with what the applicant is seeking in this case. Equally Section 80 of the Civil Procedure Act deals with review. The applicant is not seeking any review in this application.
8. The applicant is contending that he has suffered double jeopardy for the same debt. That the warrants which were issued are illegal. That there is a ruling pending before the Deputy Registrar. The applicant further contends that he has been overcharged.
9. The applicant’s application has been opposed by the respondent through a replying affidavit sworn on 30/5/2016 and a further affidavit sworn on 19/9/2016. The respondent has explained the chronology of events leading to this application which he contends is an abuse of the process of the court and that it amounts to a back door appeal from the ruling of the Deputy Registrar.
10. Contrary to the applicant’s contention that there is a ruling pending before the Deputy Registrar, the respondent states that the said ruling was delivered on 28/7/2015 and that the warrants for the balance were properly issued.
11. I have carefully considered the applicant’s application as well as the opposition thereto by the respondent. It is not dispute that there were costs assessed for an application and the main suit. Parties agreed on the mode of payment of the costs. The plaintiff/applicant paid the initial payment of Kshs.28,916/= but declined to pay the balance forcing the respondent to engage the auctioneers.
12. The applicant seems to be complaining that he has overpaid and that no further execution should be levied against him. When auctioneers go to execute, they not only recover the decretal sum but also their costs. In the instant case, the auctioneers were given instructions to recover the balance of Kshs.62,000/=. They were able to get Kshs.72,000/=. After they took their costs, they remitted Kshs.30,000/= to the defendant. This therefore meant that there was a balance of about Kshs.31,000/=. The defendant was in order in giving auctioneers instructions to recover the balance. The auctioneer is entitled to remove his costs first and hand over what remains to the instructing client.
13. It cannot be argued that since the auctioneers recovered Kshs.72,000/= which was over and above the balance of Kshs.62,000/=, further execution ought not to be carried out. The Deputy Registrar dealt with the application for review as per the law. If there is a balance, the defendant is free to recover the same. I do not find anything wrong with the warrants and the same cannot be set aside. I therefore find that the applicant’s application lacks merit. The same is hereby dismissed with costs to the respondent. The order staying warrants given on 19/5/2016 is hereby discharged.
It is so ordered.
Dated, signed and delivered at Kitale on this 3rdday of November, 2016.
E. OBAGA
JUDGE
COURT
Ruling signed in court at 3. 00 pm in the absence of parties and their advocates who were aware of the time and date of ruling.
Court Assistant – Isabellah.
E. OBAGA
JUDGE
3/11/2016.